U.S.
exporting companies have discovered the utility of H-3 (temporary trainee)
visas. These visas are ideal for nonimmigrant workers admitted for
the purpose of receiving training in any field of endeavor, such as agriculture,
manufacturing, commerce, communications, finance, govern-ment, transportation,
or the professions, as well as training in a purely industrial establishment. In
light of the H-1B visa problem -- Congress simply has not provided enough
H-1B visas, and they disappear quickly -- the H-3 visa may be an alternative
for entry-level trainees, or foreign students who want an entry-level position
but need training first. The
H-3 visa is approved for one entry, good for two years, usually renewable
once for not more than two years. Renewal ("extension") must be accompanied
by new application form. Because the U.S. Department of Labor (DOL)
does not view this visa as a temporary employment hire, a labor condition
application is not required, as it is for the H-1B (specialty occupation)
temporary worker visa. The
visa's conditions and restrictions follow:
The petitioner is required to demonstrate that (1) proposed training is
not available in the trainee's own country; (2) trainee will not be placed
in a position in the normal operation of the business in which citizens
and resident workers are regularly employed; (3) trainee will not engage
in productive employment unless such employment is incidental and necessary
to the training; and (4) training will benefit trainee in pursuing a career
outside the United States.
Each petition for a trainee must include a statement that (1) describes
the type of training and supervision to be given, and structure of training
program; (2) sets forth the proportion of time devoted to productive employment;
(3) shows the number of hours that will be spent, respectively in classroom
instruction and in on the job training; (4) describes the career abroad
for which the training will prepare the trainee; (5) indicates the reasons
why such training cannot be obtained in the alien's country and why it
is necessary for the alien to be trained in the United States; and (6)
indicates the source of any payment received by the trainee and any benefit
that will accrue to the employer for providing the training.
The company's training program will not be approved if it has the following
attributes: (1) deals in generalities with no fixed schedule, objectives,
or means of evaluation; (2) is incompatible with the nature of the employer's
business or enterprise; (3) is on behalf of a trainee who already possesses
substantial training and expertise in the proposed field of training; (4)
is in a field in which it is unlikely that the knowledge or skill will
be used outside the United States; (5) will result in productive employment
beyond that which is incidental and necessary to the training; (6) is designed
to recruit and train aliens for the ultimate staffing of domestic operations
in the United States; (7) does not establish that the employer has a physical
plant and sufficiently trained manpower to provide the training specified;
or (8) is designed to extend practical training previously authorized a
nonimmigrant student.
These factors have contributed to a finding that the training offered is
"productive employ-ment": (a) a substantial salary offered to the
trainee; and (b) a long, repetitious training program consisting primarily
of on-the-job training. Training offered to an H-3 trainee must not
be for the purpose of recruiting foreign workers. To
hire an H-3 trainee, the U.S. company must develop a training program.
If the company already has a program, it would be a good idea to allow
the immigration lawyer to review the program for compliance with the federal
regulations referred to above. The process for receiving authorization
to hire temporary nonagricultural workers is too complicated for the type
of one-page article on immigration law topics that I like to write.
But this format does provide space to give you some basic information,
which you should not use unless you are prepared to spend considerable
time wandering through a bureaucratic maze.

WARNING:
A
foreign national may not be employed in the United States unless he or
she is authorized to be employed by CIS. Foreign nationals who enter
the United States on H-2B visas may work for the employer specified on
their visa, but they may not leave their employment and go to work for
another employer without first obtaining a new visa. If you are a
U.S. employer and would like to know more about this visa, you may call
the Immigration Law Center, at (334) 832-9090. If you would prefer
to contact a U.S. immigration lawyer near you, please call the American
Immigration Lawyers Association in Washington, D.C., at 1-800-954-0254.

Boyd
F. Campbell is a member of the
American
Immigration Lawyers Association (AILA), and the Alabama State Bar (ASB).
He served as Chair of the Immigration Law Committee of the American Bar
Association's General Practice, Solo & Small Firm Lawyers Section,
and was a member of the ABA's Coordinating Committee on Immigration Law
from 1994 to 1998. He is also a memer of the ASB's International
Law Section and served as Chair of the International
Law Sectionfrom 2000 to 2002. He has practiced international,
immigration, and federal employment law in Montgomery, Alabama, since 1988.
In August, 2001, Mr. Campell was appointed Alabama's first practicing civil
law notary by the Alabama Secretary of State.

Questions or comments
about this article may be directed to:Immigration
Law Center, L.L.C.P.O. Box 11032Montgomery, Alabama 36111-0032
USA